This
matter is before the Court on Plaintiffs' Motion for
Judgment on the Supplemented Administrative Record and Motion
to Supplement the Administrative Record. (Doc. Nos. 33, 36.)
In the Second Amended Complaint, (Doc. No. 5), Plaintiffs
seek reversal or remand of a decision issued by an
Administrative Law Judge (“ALJ”) pursuant to the
Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400, et seq.
For the reasons set forth below, Plaintiffs' Motion to
Supplement the Administrative Record is denied, and
Plaintiffs' Motion for Judgment on the Supplemented
Administrative Record is denied.

BACKGROUND

I.
General Background

The
Student is an eleven-year-old individual with Down Syndrome.
(D. Ex. 13 at 0054-55.)[1] The Parent describes her as “a
fun, bubbly little girl” and “a social
butterfly.” (Tr. at 390-91.) The Student displays
“delays in gross and fine motor coordination, memory
recall and other cognitive functions, developmentally
appropriate interpersonal interactions, and communication
skills compared to her same-age peers.” (S. Ex. 23 at
266.) Her vocabulary is approximately that of a three- or
four-year-old. (Tr. at 640.) The Student receives special
education services “under the Developmental Cognitive
Disability category.” (Id. at 0054.) She began
receiving special education in August 2006. (Id.)
The Parent testified that the Student has had numerous
friends at the school for years. (Tr. at 381-82.)

A.
The Student's Kindergarten Through Third Grade
Years

The
Student attended Bertha-Hewit Elementary School in the
District from kindergarten through fourth-grade. In
Kindergarten, a staff person sprayed the Student in the face
with water as a form of behavioral intervention. (S. Ex. 56
at 425.) A note in the Student's medical file relating to
this incident indicates that “[the Parent] has
considered pulling her daughter out of the school district .
. . but is hoping things will work out to keep her here in
Bertha.” (S. Ex. 68 at 744.) An “Assistive
Technology Consideration” report from 2012, the
Student's kindergarten year, indicates that “[the
Student] exhibits inappropriate behaviors such as hitting,
kicking, spitting and telling an adult to ‘shut-up'
or ‘no.'” (S. Ex. 2.)

Progress
Reports from the Student's first- and second-grades show
the Student making “Adequate Progress” in
multiple goal areas. (S. Ex. 1; S. Ex. 5; S. Ex. 13.) The
paraprofessional who worked with the Student during first and
second grade testified that she observed the student
“swearing, spitting, kicking, [and] hitting.”
(Tr. at 227.) The Student was not restrained or sent home
these years. (Id. at 229.) The paraprofessional
reported that the Student “mainstreamed for maybe 45
minutes in the morning, [and] the rest of the day was
one-on-one.” (Id. at 236.)

A
February 20, 2013 individualized education program
(“IEP”) amended on November 7, 2013-the
Student's first-grade year-notes: “In the
mainstream, [the Student] exhibits some undesirable behaviors
that can be disruptive and sometimes harmful to her peers and
adults. A majority of [the Student's] programming will be
done in the Resource Room until [the Student] can learn to
function successfully in the mainstream.” (S. Ex. 4 at
27.) Similarly, it states that “[s]he has a very short
attention span so only lasts so long in the mainstream for
large group before she starts making noises or moving around
the room. At that point, she comes to the Resource Room for
lessons at her pre academic level.” (Id. at
30.) The IEP notes that “behavior charts” would
be utilized to track the Student's progress.
(Id.) In the description of paraprofessional support
needs, this IEP states that “[the Student] shows
physical aggression towards self or others.”
(Id. at 31.) The “Least Restrictive
Environment (LRE) Explanation” for this IEP states that
“[the Student] will be removed from the mainstream
during academic times, where the expectations are too high
for her and her growling disrupts her peers and
teacher.” (Id. at 32.) The IEP describes the
modifications and supports to be used in response to the
Student's disruptive behaviors. (Id. at 33.) The
Parent testified that the Student was reportedly swearing and
touching herself on occasion in first grade. (Tr. at 476.)

The
Student's IEP dated February 12, 2014-the Student's
second-grade year- reiterates the prior statements regarding
the Student's behaviors in the mainstream that she
reportedly “can be disruptive and sometimes harmful to
her peers and adults.” (S. Ex. 11 at 58.) In addition,
the IEP states that “[s]he generally can be with her
peers without pulling hair, hitting, or kicking. On occasion,
those behaviors crop up. [The Student's] most recent
behaviors include spitting, growling, and saying
‘no' to verbal requests and to her visual
schedule.” (Id. at 61.) Once again, the IEP
notes that behavior charts would be kept to monitor progress
and identifies a benchmark goal that “[the Student]
will make it through her day with two or less ‘Needs
Improvement' notations on her behavior chart per day for
7 out of 10 days.” (Id. at 62.) This IEP also
contained the language referring to “[the Student]
show[ing] physical aggression towards self or others.”
(Id. at 63.) The “Least Restrictive
Environment (LRE) Explanation” for this IEP states that
“[the Student] will be removed from the mainstream
during academic times, where the expectations are too high
for her and she disrupts the learning of her peers.”
(Id. at 64.) The modifications referenced in this
IEP include redirection and removal to a different setting
“[w]hen [the Student] exhibits undesirable
behaviors.” (Id. at 65.)

Also in
the Student's second-grade year, the Eagle Bend Police
Department documented a report of suspected child abuse and
neglect involving the Student. (S. Ex. 53.) According to this
report, a paraprofessional involved with the Student had
slapped the Student, tapped her on the mouth, squeezed her
head firmly, pulled her around by her ponytail or hood, and
“pinned [her] to the wall.” (Id. at
407-09.) In May 2014, the Todd County Attorney's Office
filed a criminal complaint against the paraprofessional for
the reported maltreatment of the Student. (S. Ex. 54.)

The
Student's third-grade year was successful with limited
behavioral difficulties, and the Student was “[m]aking
progress.” (Tr. at 94, 182-83, 248, 267, 387.) The
District's superintendent, Eric Koep
(“Koep”), explained that there were
“occasional behavior issues, but not to the extreme
that started in September [of the Student's fourth-grade
year].” (Id. at 56-58, 94.) The Student's
mainstream teacher, Mark Frethem (“Frethem”)
similarly testified that the Student did not exhibit
significant behavioral difficulties in the mainstream
classroom during third grade. (Id. at 241-49.) He
explained that “when the disruptive behavior began,
they left the classroom.” (Id. at 246.)
Frethem testified that he did not witness the Student
engaging in behavior that created a danger to herself or
others. (Id. at 245.) He stated, “I believe
she was able to participate somewhat degree [sic] in the
classroom to keep her with her classmates a little
bit.” (Id. at 246.) Finally, the Parent agreed
that third grade had been “awesome” and that the
Student had progressed that year. (Id. at 387.) She
testified that there were no similar behavioral challenges as
those that later took place in the fourth grade.
(Id. at 388.)

The
Student's February 19, 2015 IEP, agreed upon by the
Parent on March 6, 2015-the Student's third-grade
year-noted that “[i]n the mainstream, [the Student]
exhibits some undesirable behaviors that can be disruptive
and sometimes aggressive toward adults.” (D. Ex. 5 at
0030.) The IEP explained that “[s]he has shown
significantly less negative/aggressive behaviors with
peers” and that aggressive behaviors towards staff were
less common “in the morning structured setting.”
(Id.) The IEP indicated that the District would
utilize “behavior charts” to measure progress on
one of the Student's IEP goals. (Id. at 0034.)
The IEP described the Student's needs for
paraprofessional support in the regular education setting,
special education setting, and on the school bus.
(Id. at 0035.) This portion of the IEP noted the
Student's “physical aggression towards others,
” “socially inappropriate behavior, ” and
“unsafe behaviors while on the bus.”
(Id.)

The
“Modifications” section of the February 19, 2015
IEP similarly noted that “[the Student] needs
observation and redirection of behavior as she shows physical
aggression towards others at times and increased
vulnerability due to cognitive deficits or socially
inappropriate behavior.” (Id. at 0037.) The
IEP provided that “[the Student] will be removed from
the classroom to quiet setting [sic] if she is disrupting the
learning of her fellow students” and that she would be
“removed from the problematic setting to another
setting” if “exhibit[ing] undesirable
behaviors.” (Id.) Another modification noted
that a paraprofessional would accompany the Student in the
school van “to insure that [the Student] stays in her
seat and does not harm herself or other students in the
van.” (Id.) Amanda Mozis
(“Mozis”), the student's special education
teacher, explained that this IEP was intended to be effective
from February of the Student's third-grade year through
February of her fourth-grade year. (Tr. at 545, 548, 603-04.)
The Parent agreed that “at the start of [the
Student's] fourth grade . . . this particular IEP was
appropriate for [the Student].” (Id. at 506.)

B.
The Student's Fourth-Grade Year

1.
Increasing Behaviors

According
to Mozis, the Student began to display increased problematic
behaviors between her third- and fourth-grade years. (Tr. at
545-48, 550-51.) Such behaviors included “running from
the designated area, ” “some physical aggression
and a little bit of the verbal aggression.”
(Id. at 551.) Mozis did not have documentation of
such behaviors occurring in the summer. (Id. at
578.) These behaviors reportedly continued in the
Student's fourth grade along with near-daily swearing,
hitting, inappropriate touching of herself, and touching
“with a sexual nature.” (Id. at 552-53.)
Shari Moller (“Moller”), the Student's
fourth-grade speech teacher at school, testified that she
witnessed similar behaviors such as “[s]wearing,
hitting, throwing or destruction of property.”
(Id. at 636, 638, 702-03.)

Mozis
described the Student's fourth-grade year as “rough
from the get-go.” (Id. at 554.) This was
consistent with Moller's explanation that “when I
started out this year from the first day there were
behaviors.” (Id. at 703.) Mozis explained that
“[w]ithin eight school days or our third week of school
we had seen enough behaviors to be concerned and want to
begin charting to see if we could find a pattern with the
people or the time of day or the activity to try and get a
handle on the behaviors that we were seeing.”
(Id. at 554.) She met with a team that included the
school psychologist to discuss these concerns and developed a
chart to document the Student's behaviors. (Id.
at 554-57.) According to Mozis:

. . . [I]t was a very big concern for us that we were seeing
as much swearing and as much physical aggression, that . . .
we did not feel it was appropriate.

And I wanted to get a handle on this because it's not
allowing her the best education when we've got things
that are blocking it and we can't figure out why.

(Id. at 556.) Heidi Bucher (“Bucher”),
the District's school psychologist, testified that she
talked with Mozis and two other individuals on September 3,
2015 “regarding [the Student's] behaviors and some
strategies that we might use to address those.”
(Id. at 711, 716-17.) She explained that this
discussion resulted in the decision to develop a behavior
chart and begin tracking the Student's behaviors.
(Id. at 717-18.)

2.
September 15, 2015 Restraint Incidents

On
September 15, 2015, the Student was placed in a restrictive
hold in response to a reported emergency situation after she
hit a teacher. (S. Ex. 29; see also S. Ex. 56 at
445-46.) The Critical Incident Data Sheet relating to this
incident also reports that the Student “threw objects
in the room, swore, [and] kicked the desk.” (S. Ex.
29.) The incident is reported to have taken place from 9:55
to 10:30 in the sensory room. (Id.) The same day,
another restrictive procedure was utilized after the Student
reportedly “was throwing objects, swearing, hitting,
spitting, [and] kicking.” (S. Ex. 30; see also
S. Ex. 56 at 445-46.) This incident took place in the hallway
and sensory room from 11:15 to 12:00. (S. Ex. 30.)

Moller
explained the circumstances leading up to the first
restrictive hold on September 15, 2015. (Tr. at 705-07.) The
Student was listening to music on a device, and Moller
indicated that her time was finished and speech class was
done. (Id. at 705.)

Moller
explained, “I signed all done again and she swore and I
said stop, hold on. And she threw the device and started to
hit.” (Id. at 705-06.) The Student hit both
Moller and the paraprofessional who was with the Student,
Mary Denny. (Id. at 706.) Moller called Merchant and
left the room to attempt to let the Student calm down.
(Id. at 706-07.) She was not present when the
restraints were imposed on the Student in the classroom.
(Id. at 707.) Merchant testified regarding the
restraint:

I was called down to the sensory room because [the Student]
was hitting, spitting, kicking, and throwing things at the
two - at the teacher and para who were in the room. So, I was
called down to assist.

And at the time they were unable to calm her and redirect
her. And so, she continued to throw things and hit and kick
and spit and was - got to a point of being concerned for [the
Student's] safety and getting hurt because there were
numerous objects in the room.

And a restraint was put on [the Student] so Mary [Denny]
could assist in getting the room cleared out of any other
objects and items that [the Student] might hurt herself or
others with.

(Id. at 318.)

Mozis
also testified regarding what took place on September 15,
2015. (Id. at 560-68.) She was not involved in the
first hold or the incidents leading up to it. (S. Ex. 29 at
341.) Mozis had been working with the Student when she
“became noncompliant” and “went underneath
the table.” (Tr. at 560.) Mozis attempted to redirect
the Student, and the Student appeared willing to comply with
another task. (Id. at 560-61.) However, Mozis
explained, she then “began . . . clearing and pushing
everything off of the table.” (Id. at 561.)
Mozis recalled, “it very quickly went from a compliant
situation where she was agreeing with the choices she was
given to a situation where she was no longer compliant and
was becoming physically aggressive.” (Id. at
561.) The Student then tried to pick up a large piece of
office equipment, and Mozis sought additional staff help
because, in her words, “this was going south very fast
and being concerned that she was putting herself in physical
harm right there, physical danger. That's what led up to
being escorted out of the room.” (Id. at 561.)
Merchant then arrived and helped Mozis escort the Student
from the room. (Id. at 561-62.)

Merchant
testified that “when we were leaving the resource room
[the Student] indicated to us, and she was very calm and mild
about it, that she wanted to walk to the sensory room.”
(Id. at 365.) However, the Student then
“became very hostile” and “[they] were
concerned about her safety and her running, ” so she
and Mozis then escorted the student down the hall with her
hands over her chest in a “CPI hold we were
taught.” (Id. at 325-26, 363-64.) The Student
then got onto the floor and a restraint was imposed to hold
the Student. (Id. at 364.) Mozis explained that she
used “[v]ery, very little” force when holding
down the Student in the hallway and attempted to verbally
calm the Student. (Id. at 563-64.)

A video
recording documents what took place in the hallway. (S. Ex.
31.) The video shows that Mozis and Merchant escorted the
Student in the hallway with her arms crossed over her chest
for a few seconds before the Student dropped to the floor.
(Id. at 11:29:06-11:29:13; Tr. at 80-82.) Mozis and
Merchant then held the Student's arms while she was lying
on the floor, and Merchant moved to hold down the
Student's legs after she appeared to raise her leg or
kick. (S. Ex. 31 at 11:29:13-11:29:33.) The restraint of the
Student's legs lasted approximately two minutes.
(Id. at 11:29:33-11:31:20.) The restraint of the
Student's arms lasted approximately three minutes.
(Id. at 11:29:13-11:32:01.) After the staff both
stopped restraining the Student, the Student continued to lie
on the ground for approximately fifteen minutes before
sitting up on her own. (Id. at 11:32:01-11:47:15.)
While the Student was on the floor in the middle of the
hallway, numerous students and staff walked past her.
(See, e.g., id. at 11:33:10.) After sitting
up, the Student moved over to sit by her paraprofessional,
Connie Leyh (“Leyh”), who had arrived on the
scene and was standing against the wall. (Id. at
11:48:00; Tr. at 347-50.) After about three minutes, the
Student stood up and walked down the hallway with Leyh,
Mozis, and Merchant, reaching out to hold Mozis by the hand.
(S. Ex. 31 at 11:51:05-11:51:19.)

Merchant
testified that she believed that the situation was an
emergency when the restraint in the hallway was applied. (Tr.
at 333.) Mozis also believed the restraint incident was an
emergency. (Id. at 565.) As she explained,
“moments before what's seen on video was she was
grabbing that paper shredder . . . which really scared me. I
mean, I truly thought she was in danger of hurting herself,
as it's a very large, heavy machine.” (Id.
at 564; see also Id. at 606.)

After
the restraint, the Student continued to lie on the floor
without being held. (Id. at 336.) Merchant explained
that the staff were “waiting for [the Student] to go on
her own accord” because she believed she was not
supposed to “pick [students] up and move them.”
(Id. at 338-39.) She explained that this response
was consistent with how she had been trained to deal with
such situations: “You are to let a student on their
terms let you know when they are calm and they are ready and
they are ready to move on.” (Id. at 357.)
Mozis explained, “to avoid ramping her up, we were
using a technique of ignoring, purposeful ignoring, so that
it wasn't giving her more attention to feed into her, but
to allow her to unwind in that situation on her own.”
(Id. at 566.)

The
school's special education director testified that
“[t]he restraint [imposed in the hallway] [was] not one
that is taught by CPI.” (Id. at 250, 271.)
Mozis also testified to this fact. (Id. at 565-66.)
Mozis had not obtained CPI training until October 2015, after
the September 15, 2015 incident. (Id. at 546.)
Moller also testified that she was not up-to-date on her CPI
training at the time. (Id. at 706.) This training
educates professionals on “nonverbal strategies, the
nonviolent crisis intervention strategies and de-escalation,
things to do before it comes to a need for a restrictive
hold.” (Id. at 546.) Mozis followed
Merchant's lead, “trusting that [the hold] she was
using was CPI certified.” (Id. at 606.)
Merchant answered affirmatively when asked, “Are you
aware that there is collateral damage, not only physically,
but psychologically to children when you use a physical
restraint?” (Id. at 330.) Mozis testified
similarly. (Id. at 586.)

3.
Aftermath of the September 15, 2015 Incidents

On
September 15, 2015, Merchant left a message for the Parent to
call her back about the incidents, but the two were unable to
connect on the phone until the following day. (Id.
at 383, 385-86.) The Parent first learned about the incident
from other students who reported it to their guardians who
then called the Parent that evening. (Id. at
383-85.) The Parent did not receive an incident report about
the incident until “quite a few days” after it
took place. (Id. at 392.) The Parent did not see the
video documenting this incident until the day of the
parties' resolution session in January 2016.
(Id. at 386; S. Ex. 57; S. Ex. 56 at 581-83.)
According to Mozis, she spoke to the Parent “quite
immediately after the situation and proposed a team meeting
to address the concerns that we were having, as well as the
hold that had been done.” (Tr. at 568.) This meeting,
discussed in more detail below, took place on September 24,
2015. (D. Ex. 7.)

On
October 8, 2015, Koep made a maltreat report to the Minnesota
Department of Education relating to the September 15, 2015
hold imposed upon the Student in the hallway. (S. Ex. 55; Tr.
at 293.) According to this report, the hold was not conducted
in accordance with guidelines. (S. Ex. 55 at 423.) The
Minnesota Department of Education's summary description
similarly states that “[a] school administrator placed
a student in an improper restraint.” (Id. at
421.) There was no reported injury resulting from the hold.
(Id. at 423.) The matter was closed on October 19,
2015 because the incident “[did] not meet the
definition of maltreatment.” (Id. at 421.) A
case note indicates that “[i]t is a situation of an
inappropriately executed physical restraint that did not
result in injury.” (Id. at 422.) The District
did not notify the Parent of the maltreatment report. (Tr. at
394-95.)

4.
The Student's Behaviors and Regression in Skills

Included
in the administrative record are the District's
behavioral charts from September 15, 2015 to February 29,
2016 documenting the Student's incidents of verbal and
physical aggression, escape, and inappropriate touching. (D.
Ex. 23.) These charts illustrate increased behavioral
difficulties during speech, lunch, and recess and in the
afternoons. (Id.) The charts do not specifically
document the antecedent triggers for the Student's
behaviors. (Id.; see also Tr. at 594.)
Mozis explained that “[f]rom my college courses and the
training that I have there, I know that it's important to
try and find the function of the behavior and what is
triggering the behavior.” (Tr. at 594.) She explained
that in her view, such data was “collected and written
in the [functional behavioral assessment] that we did.”
(Id.) Mozis testified that the District also did not
collect “data around the use of interventions and
whether they are effective or not for [the Student].”
(Id. at 598.)

On
October 12, 2015, the District suspended the Student for two
days because she “hit and kicked [two] paras[, ] threw
items off desktop, knocked over waste baskets, [and] tried to
tip over water cooler.” (S. Ex. 32.) On this day, the
District called the Parent to pick up the student from
school. (S. Ex. 56 at 429; see also D. Ex. 23 at
0204.) The record also includes more than a dozen Incident
Report Forms documenting the Student's behaviors
throughout her fourth-grade year, such as pulling others'
hair; hitting, kicking, and scratching others;
inappropriately touching herself and others; spitting; and
swearing. (See S. Exs. 33-50; see also S.
Ex. 56 at 505, 510.)

The
Student has been seen by Dr. Shaneen Schmidt (“Dr.
Schmidt”) as her primary care doctor since her birth.
(Tr. at 146-49.) During the administrative hearing, Dr.
Schmidt agreed that the Student is “vulnerable”
and “[has] a communications disorder.”
(Id. at 169.) She explained that “maladaptive
behaviors” among children with communication
difficulties are commonly related to stress. (Id.)

On
February 3, 2016, the Parent brought the Student to Dr.
Schmidt for a visit and raised concerns about incidents of
wetting at school. (S. Ex. 68 at 778.) The medical note
states:

This only happens when she is at school and never happens
when she is at home or on the weekends during the day. When
she comes home from school she apparently repeats the word
‘naughty' many times. [The Parent] is wondering if
she is getting yelled at . . . in a stressful way . . .
caus[ing] her to wet her pants.

(Id.) Dr. Schmidt described the Student's
daytime wetting (or enuresis) to be a “regression in
skills.” (Tr. at 155-59.) Dr. Schmidt testified that
such a response is typically stress-related. (Id. at
157.) The Parent similarly testified that daytime wetting was
a deterioration in skills as the Student was toilet trained
for two years previously. (Id. at 434.)

Dr.
Schmidt sought to determine the cause of the wetting
incidents and “recommended that [the Parent] work with
the school for tracking the episodes of enuresis to try to
see if we could . . . do a correlation with her enuresis to a
particular environmental thing.” (Id. at 158.)
She explained, “I had no idea. I just knew something
was happening.” (Id.) On February 3, 2016, Dr.
Schmidt wrote to the District regarding the student's
incidents of enuresis:

[The Student] has been struggling with daytime enuresis
during the school year. She has no incidences of any enuresis
at home or during the day when she is not in school. I
believe that she has some type of trigger or stressor that is
bringing on this event. I am requesting that the school keep
track of events that occur within 1 hour prior to her daytime
enuresis. I would like to see if we can identify the trigger
and potentially modify it so that she no longer has the
enuresis. I do not believe that she is acting out but instead
is having some type of visceral response to stress.

(S. Ex. 56 at 600.) Dr. Schmidt did not receive the
information she sought from the District. (Tr. at 158-59.)
She recommended that “[i]f things can't be
identified and corrected, . . . [the Parent] may need to
consider changing schools.” (Id. at 159.) The
Parent explained that the wetting incidents were
inconsistently reported in the communication notebook from
the school, and that she never received the data Dr. Schmidt
requested. (Id. at 434-36.)

As of
March 2016, the District was reporting the Student's
progress as “Insufficient” on four of her IEP
goals. (D. Ex. 19.) A note on the Student's Progress
Report dated February 1, 2016 indicates that “[d]ue to
behaviors from [the Student], we are unable to work on these
objectives and this goal because she will not do these
activities.” (Id. at 0114.) Another note from
March 7, 2016 indicates that “[the Student] struggles
to engage in a variety of settings with appropriate
behaviors.” (Id. at 0115.) A March 2, 2016
grade report indicated the Student was receiving an
“A” in Art, Health, and Music, a “P”
in Phy Ed, an “F” in Functional Skills, and an
“NI” in Math and Reading. (S. Ex. 25.) No grade
was identified for Science. (Id.) For both
Functional Skills and Reading class, a “disruptive
behavior” notation is included. (Id.
(capitalization omitted).) The Student had also received an
“F” in Functional Skills and an “NI”
in Reading during the first and second quarters of
fourth-grade. (S. Ex. 56 at 447.)

5.
Student's Presence in the Mainstream Classroom

The
Student's schedule in the fall of her fourth-grade year
involved alternating time periods between the general
education classroom and the special education environment.
(See S. Ex. 28 at 327.) For example, the Student was
scheduled to be with her peers for breakfast and in the
mainstream for a “Morning Meeting.”
(Id.) Her mornings then alternated between speech
therapy time with Moller, special education instruction with
Mozis, or time in the general education classroom with
Jessica Flock (“Ms. Flock”). (Id.) The
Student was scheduled to have lunch and recess with her peers
followed by afternoon instruction largely in the mainstream
with the exception of “Down Time” of forty-five
minutes with Mozis. (Id.)

On
September 30, 2015, the Student's mainstream teacher,
Flock, e-mailed her special education teacher, Mozis, to
inquire about how to best record the Student's attendance
because she had been relying on other students to report
whether or not they had seen the Student at school. (S. Ex.
56 at 545.) Similarly, Flock also e-mailed Mozis on October
1, 2015 to inquire if the Student was absent from school.
(Id. at 550.) She noted, “I'm thinking I
need to make a more concrete system for identifying [the
Student's] attendance.” (Id.) Again on
October 22, 2015, Flock e-mailed Mozis to ask about
attendance. (Id. at 557.) Flock testified that this
occurred “a handful [of days] every month” but
that she did not have a specific record identifying the
Student's time in her classroom. (Tr. at 221.) She
stated: “[w]e have a schedule that they follow the best
they can, but we make adjustments throughout the day. So, no,
there's no record of her specific times each day in my
room.” (Id.) She testified that she had
observed some behaviors by the Student in her classroom,
including “inappropriately touch[ing] herself”
and refusal to comply with transitions between activities.
(Id. at 222.) However, she reported that it was
“nothing serious.” (Id.)

Mozis
explained that the Student had some behavior difficulties in
the mainstream setting in fourth-grade, but that “it
[was] much more frequent in my room because oftentimes she
was removed if she was swearing or hitting or kicking or
spitting.” (Id. at 605.) She explained,
“[t]he behaviors that we were seeing, she was
oftentimes removed from the general ed curriculum and brought
out of there so that it's not a scene . . . for the
others to have to witness this and that she didn't have
to be going through those behaviors in front of her
peers.” (Id.)

The
Parent disagreed with the District's characterization
that the Student was having problems in the mainstream
setting. (Id. at 522.) She acknowledged that some
removals were appropriate “to try to address [the
Student's] individual academic, behavioral, and
functional needs.” (Id. at 521.) The District
did not provide the Parent with data on the frequency of
removals from the mainstream classroom, and Mozis testified
that she did not record such removals. (Id. at
400-01, 608.)

6.
Calls to the Parent and Removals from School

The
Parent testified that she received numerous calls from the
District throughout the Student's fourth-grade year
beginning in September. (Id. at 401.) She asserted
that these calls were taking place “[d]aily” and
related to the Student's behaviors. (Id. at
405-06.) According to the Parent, “[m]any times I'd
have to come get her.” (Id. at 406.) The
Parent explained that in the first part of the Student's
fourth-grade year, she left work “[w]eekly, on a weekly
basis, a couple times a week” to get the Student from
school. (Id.) If the Parent were unavailable, the
District would call others including the Parent's son and
a friend of the Parent. (Id. at 406-07.) The Parent
testified that her friend was called “a couple, two,
three times a week, daily.” (Id. at 407.) The
Parent explained that she requested the District to stop
these calls and that the calls stopped for some time before
starting again. (Id. at 407-08.) The Parent
testified that she stopped receiving calls “[a]bout a
month” before the administrative hearing. (Id.
at 408.) The Student's half-brother testified that he was
called by the District on “probably five”
occasions to pick up the Student, and that he actually did so
one time. (Id. at 304.) The Student's personal
care assistant testified that she “[was] aware that
[the Student] was . . . being sent home on a consistent
basis.” (Id. at 486-87, 503.)

As
previously noted, the District suspended the Student for two
days in October 2015. (S. Ex. 32.) According to the
District's behavior charts, the Parent came to the school
on November 9, 2015 for approximately forty minutes after the
Student was exhibiting behavioral difficulties. (D. Ex. 23 at
0223.) Records also indicate that the Parent was called to
pick up the Student two times in February 2016 due to
behaviors. (S. Exs. 42 & 44.)

C.
Educational Planning in the Student's Fourth-Grade
Year

1.
September 24, 2015 IEP Team Meeting

On
September 17, 2015, the District issued a Notice of a Team
Meeting for a September 24, 2015 IEP Team Meeting “[t]o
discuss the need for development and implementation of a
Behavior Intervention Plan (BIP).” (D. Ex. 6.) The
record of this meeting indicates that the Parent attended,
but Mozis did not sign the record of attendance, and no
general education teacher is identified. (D. Ex. 7.) However,
Mozis testified that she prepared the agenda for the meeting,
and she testified about the contents of what took place at
the meeting. (Tr. at 569-70.) According to Mozis, the team
discussed conducting a functional behavioral assessment
(“FBA”) “to get some answers for what we
were seeing” and proposed “an additional 45
minutes to get [the Student] some downtime.”
(Id. at 569-70.)

The
Parent testified that those in attendance “discussed
downtime in the afternoon” outside of the mainstream
setting. (Id. at 396-97.) She explained, “at
that time I felt in the afternoon, long day maybe - at the
time I felt maybe she needed a little break.”
(Id. at 396.) The rest of the team agreed.
(Id. at 396-97; see also Id. at 719.) The
Parent testified that she later determined this approach was
not working as anticipated. (Id. at 399.)

According
to the Parent, the District did not mention the possibility
of conducting an FBA at the September meeting. (Id.
at 410.) She testified that she proposed the FBA.
(Id. at 455, 734.) Bucher, the school psychologist,
testified that she attended the meeting and explained that
“[m]y involvement was to be there to explain the
possibility of a functional behavior assessment and what that
might entail or might look like.” (Id. at
718.) She explained the Parent's response to the FBA
suggestion as follows: “I recall that we explained the
process quite thoroughly, as she did have some questions
about it, but in the end she was in agreement that that was
an acceptable plan.” (Id. at 719.)

2.
September 28, 2015 IEP Amendment

On
September 28, 2015, the District issued a Prior Written
Notice proposing an increase in the Student's special
education services. (D. Ex. 8A at 0042.) Specifically, the
notice lists the following reason for the proposed change:
“[the Student] is exhibiting significant behavioral
difficulties at this time, so the IEP Team has determined
that increased behavioral support services are needed.”
(Id.) The Parent and the District entered into an
Agreement to Amend dated September 28, 2015, and the
Student's February 19, 2015 IEP was amended
“without convening the entire IEP Team.” (D. Ex.
8A.) This agreement states, “At the meeting on
09/24/2015, the team members decided that [the Student] would
increase her service time away from her peers by allowing for
downtime in her afternoons in the Resource Room.”
(Id.) The resulting IEP increased the Student's
time in the special education setting by 45 minutes, and
included the same goals and modifications as the February 19,
2015 IEP. (Id.) The Parent agreed that “at
least . . . as of September 24th of 2015 . . . that IEP [was]
appropriate to address [the Student's] educational
needs.” (Tr. at 507.)

3.
The District's Functional Behavior Assessment

The
District issued a Prior Written Notice on October 7, 2015
proposing to conduct a behavioral assessment of the Student.
(D. Ex. 10.) This notice indicates that “[t]he Team
determined that additional behavioral and functional data is
needed to determine appropriate programming for [the Student]
and meet her educational needs.” (D. Ex. 10 at 0049.)
Rather than utilize “existing information, ” the
Team decided to obtain new data “to determine an
appropriate behavioral plan and schedule for [the
Student].” (Id.) On October 9, 2015, the
Parent agreed to this evaluation. (Id. at 0048.)

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;An
Evaluation Report dated November 23, 2015 documents the
results of the District&#39;s behavioral assessment. (D. Ex.
13.) This report illustrated the District and the
Parent&#39;s reports regarding the Student&#39;s behaviors at
home and school. (See generally id.) The Parent
reported receiving &ldquo;daily phone calls from the
school&rdquo; and stated the &ldquo;everything in the
communication book is negative.&rdquo; (Id. at
0055.) The Parent also indicated that the Student has no
&ldquo;major behavioral problems at home.&rdquo;
(Id. at 0054.) This was consistent with testimony of
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.